Affirmative Action Survives — Barely

On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans. This decision is surprising both because of the outcome, but also because of who wrote the opinion.

The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program. If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program). This part of the admissions process fills about 75% of the slots. If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors). Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.

As noted above, the result was somewhat of a shock. Over the past two decades, the Supreme Court has repeatedly rejected affirmative action programs. In 2003, affirmative action in college admissions barely survived by a 5-4 vote. After Justice O’Connor (one of the five) retired and was replaced by Justice Alito, the writing appeared to be on the wall.

The first time that this case went to the Supreme Court, the Supreme Court sent it back down to the Fifth Circuit with instructions to give closer scrutiny to the justifications given by the UT for this program. The feeling at that time was that the only thing that saved the program was the desire of the Chief Justice and Justice Kennedy to avoid expressly overruling the 2003 decision (on the theory that it is bad for a change of one judge to flip the result of a recent case) while effectively undermining it.

After oral argument this time around, most observers thought that the best that supporters of affirmative action could hope for was a decision saying that the trial court needed to hear more evidence. Something, however, happened over the six months since the argument in December. One of the obvious things that happened was the death of Justice Scalia. All of a sudden what had been a presumptive 5-3 majority (as Justice Kagan is recused due to her work on the case while Solicitor General) became a 4-3 majority.

It will probably be over a decade or more before we learned what happened behind the scenes. Based on the other opinions from December, it looks like the case was originally assigned to Justice Scalia or Chief Justice Roberts. Did Kennedy flip due to a reluctance to make such a significant decision on a 4-3 vote? Regardless of how things ended up as they did, Justice Kennedy opted against killing affirmative action. Instead, for the first time in his career, he voted in favor of upholding an affirmative action plan, but his opinions include a lot of cautionary notes (including noting that this litigation began soon after UT had implemented this admission program resulting in little evidence of how much impact race had on admission under this program.) The biggest Trojan horse in this opinion is a directive that UT (and presumable other public colleges) must continually re-examine and study their admissions policies. It is clear that the Republican appointees to the Supreme Court want to end affirmative action at the earliest opportunity. This decision merely postpones that date. This year’s election will determine if that postponement is for a handful of years or for a longer period.